Complaining at Work can Get You Fired

complaining at workCan I be fired for complaining at work? Let’s say you have a complaint about how things are going at work. If you are under the impression that free speech is a God-given right to which you are entitled anytime, anywhere, you are wrong. Although the Fair Work Act makes it illegal to fire someone just for complaining, your employer can limit certain speech in terms of the time and venue in which you express your complaints.

Complaining at Work – Google Drops the Hammer

James Damore was—emphasis on was—an employee at Google. That is, until he posted a lengthy document about the company’s efforts to improve diversity among employees on a company platform. His views were allegedly steeped in sexism, and were offensive to fellow employees, who refused to buy into the notion that the biological superiority of men was the cause of the gender gap in the technology industry. Whether you agree with Damore or not, the legal issue centers on an employer’s right to control speech on a platform paid for by the company. As it turns out, although public and government entities are not allowed to restrict your free speech, the same is not true for private companies. So, how do you, as an employee, know what the rules are when it comes to expressing yourself?

Does Your Company Policy Cover Complaining at Work?

When Google CEO Sundar Pichai responded to Damore’s post, he specifically referred to the code of conduct at Google. Most companies have an employee handbook that details expectations related to this type of thing, and they generally close by stating that failure to abide by the company’s expectations can lead to disciplinary procedures, and, potentially, termination.  It would behoove employees to be clear about company policies.

Know What You are Talking About

Damore was taking the company to task for policies promoting diversity, but his point became lost in controversial statements that have been scientifically disproven. His complaint became weak and his argument ineffectual.

Complaining at Work – Protect Yourself

If you have legitimate complaints about the job, there are some things you can do to ensure your complaining at work is heard without resulting in unemployment:

  • Formalize the complaint: Whether that means inviting a union representative, scheduling a meeting with management or HR, or simply writing your issues on a workplace form, demonstrate that you are serious about a workplace issue.
  • Assemble prior performance reviews and other documentation that may rebut allegations against your job performance in the event the complaint ruffles some feathers.
  • Offer constructive criticism, and, if possible, tell management what you would like to have happen.
  • Handle yourself professionally. Your supervisor will have a tough time saying you have an attitude problem if you do.
  • Document the interaction. If your complaint is related to discrimination or other legal issues and the company fails to respond appropriately, they could be facing legal trouble.

[Read more…]

Workplace Religious Discrimination

workplace religious disriminationWorkplace religious discrimination does not pay in California. Is America a Great Melting Pot or a Cultural Stew? Regardless of how you view the enormous collection of cultures, ideas, and religions in this country, the legal protections for differences are alive and well. When it comes to religious differences, federal and California law join to protect all Americans, regardless of faith. If your employer fails to recognize your religious rights under the law, a conversation with a local employment attorney could prove useful.

Legal Requirements and Workplace Religious Discrimination

Title VII of the Civil Rights Act of 1964 requires employers to make reasonable accommodations for the religious beliefs of employees. This law, in conjunction with California’s Fair Employment and Housing Act (FEHA) provide significant religious protections for employees.

FEHA’s requirements ask employers to make reasonable accommodations for religious reasons, provided the accommodation does not lead to the segregation of employees based on religious affiliation. Such accommodations would be expected to include:

  • Changes in work schedules in order to accommodate religious holidays or observances;
  • Adjusting dress and grooming standards;
  • Allowing for private prayer time during the workday as prescribed by the religion.

Proving an Accommodation Causes Undue Hardship for the Company

It is not necessary to make adjustments to company policies and procedures if those adjustments would result in undue hardships. Those hardships will be evaluated considering several factors, including:

  • Nature of the accommodation;
  • Costs required;
  • Resources of the company;
  • Size of the facility;
  • Geographic factors.

Workplace Religious Discrimination 2018 Lawsuit

One California business discovered just how serious it is for companies to decline to make the religious accommodations required by law. While making the adjustments would have been a minor adjustment for a single employer, their decision to resist working with that employee wound up costing them more than they bargained for.

Learning a Lesson on Workplace Religious Discrimination

Universal Protection Services is a private security company that provides services for a number of California businesses. When a security guard requested modifications to the compulsory grooming standards set forth by the company based on his Muslim religious convictions, the company refused to make an exception. Just days following his entreaty, the employee was fired, according to the Equal Employment Opportunity Commission (EEOC).

The employee filed a complaint with the EEOC, and the legal wheels started turning. Universal refused to agree to any settlement in the case, and after enduring litigation, was required to make a number of concessions, in addition to having to fork over 90K.

  • They were required to work with an EEOC monitor, whose task it was to appraise and modify company policies with regard to religious accommodations, to ensure company guidelines were in accordance with Title VII laws;
  • They were obliged to provide annual employee and manager trainings regarding EEOC requirements;
  • They were told to post a notice informing employees of religious rights under EEOC rules;
  • They were expected to record instances of religious discrimination complaints and issues and report those situations to the EEOC.

[Read more…]

FMLA Violations and Harassment Lead to Court for Employers

Individuals and families often have legitimate medical issues that lead to a request for time off of work. The federal Family and Medical Leave Act (FMLA) and the state’s California Family Rights Act (CFRA) lay out the responsibilities of employers (applicable to those with 50 or more employees) when it comes to family, medical, and/or parental leave. While the leave may be unpaid, it is job-protected time off. In the majority of situations, employees must be allowed to return to their previous position or an equivalent position as it relates to pay, benefits, working conditions, status, and fringe benefits. Crucially, employees are entitled to request and take leave without fear of retribution from employers.

FMLA – Employee Rights

Eligible employees are entitled to as much as 12 weeks of leave annually. This leave may be taken to deal with an array of issues, including:

  • Personal illness;
  • Caring for a family member who is ill;
  • Bonding with a newborn baby, a child who has been adopted, or a foster child;
  • A family member’s military service when associated with a qualifying exigency (FMLA provides 26 weeks to care for service members who have been injured).

Pregnancy Disability – FMLA

California’s CFRA laws apply to employers with five or more employees, and provide eligible employees as much as four months of pregnancy disability leave (PEL). This is in addition to FMLA bonding time.

When FMLA and CFRA Laws are Ignored

Failure to adhere to state and federal laws regarding leave is one of the most common reasons employees seek redress through civil lawsuits. In particular, retribution from irked employers gets them into trouble. Consider the case of Maria Salgado:

When Maria Salgado was called “psychotic” and “psycho” by a coworker, it understandably added to her stress at work. This was not helpful, especially since she suffered from anxiety and depression before the harassment began. Notably, the name-calling occurred shortly after Salgado informed her supervisor of her mental health status. Could the supervisor have breached ethical and legal boundaries by sharing this confidential information with Salgado’s co-worker?  If so, it would be the latest in a long list of harassment experienced by Salgado at the hands of her supervisor, including:

  • Objections for taking time off to deal with medical issues related to an injury, diabetes, and mental health problems;
  • Disciplinary action related to Salgado’s providing less than 24-hour notice prior to taking sick days or medical leave;
  • Confrontations and berating for expressing concerns in an open meeting hosted by the union to deal with medical leave issues;
  • Retaliating by insisting that Salgado be fired after three tardies totaling 13 minutes;
  • Failing to address co-worker harassment that occurred in the presence of the supervisor.

[Read more…]

Age-Discrimination Does Not Pay Off for Danaher Corp.

age-discriminationWhen her bosses told Codie Rael that she was a dumb female who was outdated and old culture, she got fed up and quit her job.  Then she filed a lawsuit against the company for age-discrimination. If you find yourself facing age discrimination, speaking to a local labor law attorney could open some doors for you.

Outcome of the Age-Discrimination Case

A jury found that Rael’s employers were malicious and oppressive, and hit them with a $31 million judgment: $3 million in compensatory damages and a whopping $28 million in punitive damages.

State and Federal Anti Age-Discrimination Laws

There are laws on the books protecting you from age discrimination in advertising for jobs, the application processes, hiring, offering promotions and training opportunities, and/or firing.  Compensation and working conditions cannot be assigned based on age, either.

Is it Age-Discrimination?

Proving age discrimination is getting tougher these days. Rael’s case was littered with overt age slurs, making it easier to prove that her age was an issue with her employers. Most employers are smart enough to know that making disparaging remarks about an employee’s age could get them into trouble.  

In past years, older employees who were let go as part of a reduction in staff could infer that age-discrimination was at the root of the termination. Recent court decisions have found that companies that are trying to reduce costs are within their rights to eliminate higher earning individuals—often those who are older. Reducing costs and age discrimination no longer go hand in hand. In order to win a discrimination case, employees must demonstrate that age was a central issue behind the firing.

If You Think You Have an Age-Discrimination Case

In the event you believe you have a case for age-discrimination, it is important to pay attention to timelines:

  • You have 300 days to file an age discrimination case with the U.S. Equal Employment Opportunity Commission (EEOC) if a state agency enforces anti-discrimination laws (California’s Fair Housing and Employment Act (FEHA) protects employees at work places that employ five or more people);
  • If you are filing suit under the Equal Pay Act, you have two years from the time of the incident to make your claim.

[Read more…]

Federal Court Supersedes California Immigration Laws

immigration lawsCalifornia immigration laws. When the Immigrant Worker Protection Act became law in January 2018, many hoped it would keep local immigrants safe from ICE agents and their workplace investigations. The feds have temporarily enjoined a number of the provisions in California’s law, however. So, where do things stand right now? A local labor and employment attorney might be worth consulting.

Assembly Bill 450

California’s bill, alternately referred to as AB 450 and the Immigrant Worker Protection Act, banned employers from cooperating with immigration agents in several ways:

  • Immigration enforcement agents were not be allowed access to areas of the facility that were not open to the public;
  • These agents were not allowed to obtain or view employee records;
  • Agents were unable to re-verify the Employment Eligibility Verification form (Form I-9), without a requirement by federal law.

Immigration Laws – New Federal Push

A new temporary injunction orders the state to stop impeding private business from cooperating with federal investigators looking into illegal immigration. The injunction prevents the state from putting restrictions on when and how employers can cooperate with ICE agents with regard to I-9 issues.

The impetus behind the federal push for relaxing state requirements on employers is based on the perceived “precarious situation” employers have been put in when crushed between state law and federal expectations. The federal intervention is designed to enhance cooperation between federal enforcement officers and business owners.

Additionally, the injunction was meant to address ambiguities within the California immigration laws, which do not provide a definition for who, exactly, is considered an immigration enforcement agent.  That has been problematic for employers who hire foreign nationals through the U.S. Citizenship and Immigration Service (USCIS), since that agency approves applications only in conjunction with the employer’s agreement to cooperate with record-sharing and premises inspections.  Backing out of that promise could lead to a number of problems, including:

  • Reviving particular immigrations cases;
  • Prompting larger investigations;
  • Rescinding the USCIS approval for foreign nationals.

What Parts of California Immigration Laws Still Stand?

According to the federal decision, the notice obligation for California employers remains intact. Employees must be told of I-9 reviews or other inspections related to immigration status within 72 hours of notification from ICE.

Consequences for Employers with Documentation Improprieties

When I-9 forms are not properly completed, employers are subject to fines of up to $2,191 per infraction. Knowingly hiring workers who are not authorized to work in the country can mean a fine of $16,000 per incident. [Read more…]

Pregnancy Discrimination Costs AutoZone Big Bucks

pregnancy discriminationA case of pregnancy discrimination. A San Diego AutoZone manager was told that she could not handle the responsibilities of management after becoming pregnant. Pressured to step down, she stood her ground. After having her child, she was subjected to a reduction in pay and a demotion, and was later set up to be fired. She did not take the alleged pregnancy discrimination actions sitting down. In the lawsuit that ensued against her employer, Juarez was vindicated and AutoZone learned an important lesson.

Pregnancy Discrimination, A Glass Ceiling for Women?

In her suit, she asserted that female employees are limited in their ability to be promoted. In fact, only about 10% of AutoZone stores in the San Diego area had female managers. During the trial, one man who had formerly been a district manager testified that he had been admonished for promoting too many women into management positions. He had been instructed to get rid of the women, as the company was not running a boutique. Another district manager was offered a promotion in exchange for terminating all females in the stores he managed. It would seem that in addition to pregnancy discrimination, all females’ jobs were in a precarious position.

Anti-Pregnancy Discrimination Laws

Gender bias laws have been on the books for decades. The Federal Pregnancy Discrimination Act of 1978 specifies that pregnant women should be accommodated in their jobs, in the same manner as an individual with a disability or who had experienced an injury. Providing light duty and making other reasonable adaptations for pregnant woman is required by law.

Additionally, California law bans workplace discrimination. Contrary to federal law, the state has no cap on awards for punitive damages and emotional suffering. In the Juarez case, the decision was made to bring the case to state court, arguing that Juarez was discriminated against under California’s Fair Employment and Housing Act.California law obligates employers to do the following:

  • Provide reasonable accommodations, such as allowing extra breaks, allowing employees to sit, and so forth;
  • Transfer pregnant employees to a lateral position to avoid strenuous or hazardous conditions;
  • Provide as much as four months of pregnancy disability leave (PDL);
  • Allow employees to return to their same position following PDL;
  • Provide appropriate lactation breaks following the birth of a child.

The Pregnancy Discrimination Judgment

The jury found in favor of Juarez, and the court upheld the verdict, awarding her nearly $875,000 in compensatory damages and $185 million in punitive damages. They found that AutoZone, had, indeed, discriminated, harassed, and retaliated against Juarez due to her pregnancy. [Read more…]

Subcontractors Cheating Employees. Who is Responsible?

subcontractorsIf you are an employee of a company that subcontracts services for another business, you may be interested to know that if your company fails to adhere to California laws regarding wages, breaks, and so forth, you may be entitled to damages from multiple sources. A case in point involves the Cheesecake Factory, which contracted with Americlean Janitorial Services Corporation for cleaning services. Americlean then hired subcontractors Magic Touch Commercial Cleaning. Magic Touch failed to pay minimum wages, denied workers rest breaks, and ignored overtime rules. When the California Labor Commissioner’s Office got wind of the problem, they wound up assessing the three companies for a combined total for $4.57 million in fines.

California Law Butts up Against Specifics of This Subcontractors Case

According to California law workers are entitled to specific rest and meal breaks, including:

  • A 10-minute break for every four hours on shift;
  • These rest breaks should be as close to the middle of the work period as possible;
  • They must be in addition to toilet breaks;
  • Meal periods must be provided for every five hours worked, and must be a minimum of 30 minutes long;

At three different California Cheesecake Factory franchises, cleaning personnel were required to work daily shifts without appropriate rest and meal breaks. They typically worked roughly 10 hours of overtime weekly, but were paid only a flat rate for eight hours of work each day.

Businesses are responsible for workplace violations committed by their subcontractors according to California law SB 588,  putting Cheesecake Factory, Americlean, and Magic Touch all in a precarious position. Workers received almost $4 million. Liquidated damages were calculated based on the money underpaid in wages plus interest, in addition to a full hour of pay for each day workers were denied their 10-minute rest breaks. Furthermore, the companies shared over $500,000 in civil fines.  

Thanks to SB588, big corporations can no longer hide behind contracts with smaller companies. When violations occur under their umbrella, they share in culpability with their subcontractors. The Labor Commission is streamlining procedures to speed up collections on unpaid wages. Employers are now required to post bond for and judgments related to these liabilities, and get the employees paid. [Read more…]

Labor Dispute – McDonald’s Brand Scrutinized

labor disputeLabor dispute; joint employer or franchise? After years of complaints and protests against low wages and other labor issues, the National Labor Relations Board (NLRB) eventually issued grievances against McDonald’s in 2015. Wage and labor complaints from multiple franchises in California cities and others across the country were consolidated. Beneath all the labor issues lies the question, is McDonald’s USA a joint employer of franchise employees, and therefore responsible for the treatment of employees at individual franchises?

Labor Dispute Issue

The central problem in the lawsuit surrounds franchise operators’ response to employee demonstrations. McDonald’s workers claim they were fired after participating in protests organized by a labor advocacy group called Fight for $15. According to the group, workers across the country lost their jobs simply for participating in these protests.

The Lawsuit

So who is responsible for the actions of individual franchises? Does the mother corporation hold any liability when their franchises are found guilty of labor or safety violations? What implications would a decision one way or the other have on the way business is conducted across the nation?

McDonald’s argued that it simply rents out its brand to individual franchises, and every franchise is an independent business. Policies are particular to each business, and are out of the corporation’s hands.

Conversely, the NLRB hoped to expand the joint employer doctrine, extending liability to corporations to whom they franchise their brands.

Many observers felt that a ruling against McDonald’s—naming it as a joint owner–would increase franchisors’ vulnerability to legal action, toppling the franchise model altogether. Anxious to avoid having to agree that it is a joint employer, McDonald’s agreed to a settlement in which they admitted no wrongdoing, but resolved claims with an undisclosed payout to employees.

Fight for $15 was not quite as eager to settle the case, arguing that McDonald’s needed to publicly take responsibility for surveilling, harassing and firing employees who were simply standing up for themselves against paltry wages by engaging in legally protected activity.

So how did the judge respond to the proposed labor dispute settlement?

Not so Fast…

Administrative Law Judge Lauren Esposito found that unfair practices by the McDonald’s chain were not adequately addressed, and the proposal was summarily rejected.

McDonald’s USA responded with disappointment, noting that expensive, time-consuming labor dispute litigation would extend for months or years to come. The possibility of an appeal of the court’s decision is being evaluated.

Fight for $15 was delighted with the labor dispute ruling, hoping to hold McDonald’s feet to the fire and force the corporation to take responsibility for the wages and working conditions employees suffered.  Everything is on hold while both sides decide how to proceed. [Read more…]

How Far do Whistleblower Protections Go?

whistleblower protectionsWhistleblower Protections? When Michael Johnson learned that the company he worked for had amended its 2016 tax return to reduce its tax burden, he filed a whistleblower complaint against his employer. Blue Shield, he claimed, had listed over $3 billion less in premiums than the original filing report. Blue Shield responded with a lawsuit against Johnson for breach of contract, alleging he had shared confidential information about the company. Just how much credence is there to Blue Shield’s argument? Do whistleblower laws give employees the ability to disclose company secrets? For answers to these, and other business questions, contact a local business law attorney.

California Whistleblower Protections

In California, employees are encouraged to report suspected violations of state and/or federal law to appropriate agencies, which are then authorized to investigate claims of wrongdoing. In fact, as per California Labor Code Section 1102.5, individuals who report suspicions of wrongdoing by their companies are considered a protected class. Retaliation against such individuals is prohibited.

What, Exactly, Constitutes Whistleblowing?

Whistleblowing is the reporting of illegal or safety violations that may be occurring in the workplace. Employees may refuse to engage in activities deemed to be illegal or unsafe, and may ultimately report problems to applicable agencies for investigation.

Whistleblower Protections

Businesses may not legally create policies that prevent employees from reporting unsafe or illegal situations in the workplace. Additionally, the law provides that employers may not:

  • Retaliate against individuals who choose not to engage in workplace activities they believe to be against state or federal laws or OSHA regulations;
  • Retaliate against employees who report infractions.

Retaliation may take many forms, all of which are violations of California Labor Code.  Common examples include:

  • Demoting or firing the employee;
  • Denying training opportunities, promotions, or access to higher-level meetings;
  • Forcing the employee to quit by making work life untenable.

Section 1102.5 of the California Labor Code requires employers to make restitution for any of these actions and to reinstate the employee to a job from which they have been fired when these actions occur.

Whistleblower Protections from a Lawsuit?

One wonders whether or not whistleblower laws shield Johnson, who is being sued by Blue Shield. The truth is, the courts have reached different conclusions in cases across the United States in recent years. Generally speaking, they will want to take a look at a number of factors, ranging from how the materials were obtained and to whom they were given, to the employee’s need to preserve the items in order to “blow the whistle.” While a comprehensive policy regarding secret materials will help any company with its most confidential documents, it is unclear how such a policy will stand against whistleblower protections. [Read more…]

Thank You California Firefighters for Putting It All on the Line

thank you california firefightersThank you California firefighters. By July 9, 2018, nearly 200,000 acres had been scorched in California wildfires. That is more than double the amount burned in each of the previous five years. Sadly, some parts of California have been so dry this year that they were never removed from drought status from last year. As of July 30, more than 10,000 people have been mandatorily evacuated from Mendocino and Lake Counties. The Ranch Fire along Highway 20 and the River Fire north of Hopland put residents across more than 35 miles at risk. With six out of the previous seven years experiencing severe drought across the state, hot, windy conditions make fighting these fires incredibly difficult and dangerous. It has been undeniably devastating for people who live and work in the area; but what has it been like for firefighters?

Hazards for California Firefighters

The men and women who fight these enormous fires are heroes in everybody’s eyes. The perils they confront as they protect Californians are many:

  • Thick smoke;
  • Winds that lead fires to change directions without warning;
  • Narrow roads that make traveling difficult;
  • Falling branches and exploding trees;
  • Fallen trees blocking roads;
  • Fatigue from working long hours;
  • Fallen power lines posing dangers to firefighters;
  • Dehydration;
  • Heat Stress as a result of vigorous manual labor, heavy gear, poor acclimatization to severe heat, and personal risk factors.

Work Schedules for California Firefighters

When situations are urgent, firefighters are often required to work long hours. In the case of these devastating wildfires, many of these heroes are unable to spend any time with their families and friends for days and weeks at a time. They grab sleep when at the brink of exhaustion, only to go back out to continue the demanding work again until communities are safe. While the fire season was once limited to the summer months, these days, California has deadly wildfires year-round. In the past six years, at least one wildfire has been burning during every single month of the year. While firefighters used to have the cooler months to refresh and regroup, the extended heat and drought have vaporized those opportunities.  

Injuries and Death a Constant Concern for California Firefighters

Firefighters put their lives at risk every time they confront a blaze. Consider these daunting statistics from 2016:

  • Over 60,000 serious injuries were incurred by individuals fighting fires;
  • Over half of the injuries involved respiratory problems;
  • There were 69 firefighters who lost their lives in the line of duty;

As of July 30, 2018, 59 firefighters have died on the job. A study of firefighter deaths indicates that firefighter fatalities for those involved in wildfires has increased by 26% in recent years. The primary causes of death between 2007-2016 include:

  • Vehicle accidents;
  • Aircraft accidents;
  • Heart attacks;
  • Entrapments;
  • Falling rocks and trees.

[Read more…]

Disclaimer

The information on this website should not be considered to be legal advice, nor construed to be the formation of any manner of attorney client relationship. Prior to taking any form of legal action, please consult with an attorney experienced in the appropriate area of law germane to your situation. Case results and testimonials presented on www.californialaborandemploymentlaw.net or any of its related websites are germane to the facts present for each individual case and is not a promise of similar outcomes for any other cases. This website is not intended to solicit clients for matters outside of the State of California.